Philosophy Discussion

Excerpts from Memo to the United States Department of Defense on Military Interrogation of Alien Unlawful Combatants Held Outside the United States John Woo, Deputy Assistant Attorney General

1. The September 11, 2001 attacks triggered the Nation's right under domestic and international law to use force in self-defense. In response, the Government has engaged in a broad effort at home and abroad to counter terrorism. Pursuant to his authorities as Commander in Chief, the President in October, 2001, ordered the Armed Forces to attack al Qaeda personnel and assets in Afghanistan, and the Taliban militia that harbored them~ Although the, breadth of that campaign has lessened, it is still ongoing. Congress has provided its support for the use of forces against those linked to the September 11 attacks, and has recognized the President's constitutional power to use force to prevent and deter future attacks both within and outside the United States.

2. Leaders of al Qaeda and the Taliban, with access to active terrorist cells and other resources, remain at large. It has been

reported that ·they have regrouped and are communicating with their members. Given the ongoing threat of 'al Qaeda attacks, the capture and interrogation of al Qaeda operatives is imperative to our national security and defense. Because of the asymmetric nature of terrorist operations, information is perhaps the most critical weapon for defeating al Qaeda~ Al Qaeda .is not a nation-state, and has no single country or geographic area as its base of operations. It has no fixed, large-scale military or civilian infrastructure. It deploys personnel, material, and finances covertly and attacks without warning using unconventional weapons and methods.

3. The decision to deploy military force in the defense of U. S. interests is expressly placed under Presidential authority by the

Vesting Clause, U.S. Const. art. I, § 1, cl. 1, and by the Commander-in-Chief Clause, id., § 2, cl.1.6 The Framers understood the Commander-in-Chief Clause to grant the President the fullest range of power recognized at the time of the ratification as belonging to the military commander. ill addition, the structure of the Constitution demonstrates that any power traditionally understood as pertaining to the executive-which includes the conduct of warfare and the defense of the nation-unless expressly assigned to Congress, is vested in the President. Article IT, Section I makes this clear by stating that the "executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the President the "executive power" and contrasts with the specific enumeration of the powers-those "herein"-granted to Congress in Article I. .Our reading of the constitutional text and structure are confirmed by historical practice, in which Presidents have ordered the use of military force more than 100 times ·without congressional authorization, and by the functional consideration that national security decisions require a unity in purpose and energy that characterizes the Presidency alone.

4. One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members of the

enemy. It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength, and its plans.. Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants during virtually every major conflict in the Nation's history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. Recognizing this authority, Congress has never attempted to restrict or interfere with the President's authority on this score.

5. A…constitutional provision that might be thought relevant to interrogations is the Eighth Amendment. The Eighth·

Amendment, however, applies solely to those persons upon whom criminal sanctions have been imposed. As the Supreme Court has explained, the Cruel and Unusual Punishments Clause "was designed to protect those convicted of crimes." The Eighth Amendment thus has no application to those individuals who have not been punished as part of a criminal proceeding, irrespective of the fact that they have been detained by the government. The Eighth Amendment therefore cannot extend to the detention of wartime detainees, who have been captured pursuant to the President's power as' Commander in Chief.

6. The doctrine of self-defense permits the use of force to prevent harm to another person. As Lafave and Scott explain, "one is

justified in using reasonable force in defense of another person, even a stranger, when he reasonably believes that the other is in immediate danger of unlawful bodily harm from his adversary and that the use of such force is necessary to avoid this danger." Id. at 663-64; Ultimately, even deadly force is permissible, but "only when the attack of the adversary upon the other person reasonably appears to the defender to be a deadly attack."

7. First, self-defense requires that the use of force be necessary to avoid the danger of unlawful bodily harm. Id. at 649. A

defender may justifiably use deadly force if he reasonably believes. that the other person is about to inflict unlawful death or serious bodily harm upon another, and that it is necessary to use such force to prevent it. Id. at 652. Looked at from the opposite perspective, the defender may not use force when the force would be as equally effective at a later time and the defender suffers no harm or risk by waiting.

8. There can be little doubt that the nation's right to self-defense has been triggered under our law. The Constitution announces

that one of its purposes is "to provide for the common defense." U.S. Canst., Preamble.' Article I, § 8 declares that Congress is to exercise its powers to "provide for the common Defence."

9. If, however, other options permit the defender to retreat safely from a confrontation without having to resort to

deadly force, the use of force may not be necessary in the first place.

10. Second, self-defense requires that the defendant's belief in the necessity of using force be reasonable. Ifa defendant honestly but unreasonably believed force was necessary, he will not be able to make out a successful claim of self-defense. Id. at 654. Conversely, if a defendant reasonably believed· an attack was to occur, but the facts subsequently showed no attack was threatened, he may still raise self-defense. As Lafave and Scott explain, "one may be justified in shooting to death an adversary who, having threatened to kill him, reaches for his pocket as if for a gun, though it later appears that h~ had no gun and that he was only reaching for his handkerchief." Id. Some authorities: such as the Model Penal Code, even eliminate the reasonability element, and require only that the defender honestly believed-regardless of its unreasonableness-that the use of force was necessary.

11. As we have made clear in other opinions involving the war against al Qaeda, the Nation's right to self-defense has been

triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he' could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions. This national and international version of the right to self-defense could supplement and bolster the government defendant's individual right.